Witort v. Chicago & N. W. Ry. Co.
| Decision Date | 04 October 1929 |
| Docket Number | No. 26992.,26992. |
| Citation | 178 Minn. 261,226 N.W. 934 |
| Parties | WITORT v. CHICAGO & N. W. RY. CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Richard D. O'Brien, Judge.
Action by Helen Witort, as administratrix of the estate of Stephen Witort, deceased, against the Chicago & Northwestern Railway Company. From an adverse judgment, defendant appeals. Reversed, and new trial granted.
Brown, Somsen & Sawyer, of Winona, Richard L. Kennedy, of Los Angeles, Cal., and W. T. Faricy and P. J. McGough, both of St. Paul, for appellant.
Robert J. McDonald, of Minneapolis, for respondent.
Action to recover under the Federal Employers' Liability Act, 45 USCA §§ 51-59, for the death of plaintiff's intestate, Stephen Witort, alleged to have been caused by the negligence of the defendant while he was employed in interstate commerce.
The defendant is incorporated under the laws of Illinois, Michigan and Wisconsin. Witort was a resident of Illinois, working in the Proviso yards of the defendant at Chicago, and while working there was killed. The defendant moved to set aside the service of summons upon the ground that the prosecution of the action in Minnesota would constitute an interference with interstate commerce, in violation of the commerce clause of the Constitution. The motion was denied. There was a verdict for the plaintiff. Judgment was entered on the verdict, and the defendant appeals.
Defendant's claims may be summarized as follows:
(1) That the prosecution of the action in Minnesota imposes an unreasonable burden on interstate commerce and constitutes a violation of the commerce clause of the federal Constitution.
(2) That G. S. 1923 (2 Mason, 1927) § 9214, is violative of the Fourteenth Amendment.
(3) That under G. S. 1923 (2 Mason, 1927) § 9214, suit cannot be brought in Ramsey county, because no part of defendant's line of railroad is therein.
(4) That the decedent was not employed by the defendant in interstate commerce.
(5) That the court erred in charging the jury upon the rule of comparative negligence applicable in case both the decedent and the defendant were negligent.
(6) That the court erroneously charged the jury upon the duty of the switching crew to exercise care in ascertaining the whereabouts of car inspectors in the yards; and, further, that as a matter of law the deceased assumed the risks, and the defendant was not negligent.
1. The defendant attacked the jurisdiction of the court by a special appearance on motion to set aside the service of the summons. The ground urged upon the motion was that the trial in Minnesota would be unreasonable burden on interstate commerce. The defendant relies upon Davis v. Farmers' Co-op. Equity Co., 262 U. S. 312, 43 S. Ct. 556, 67 L. Ed. 996, and A., T. & S. F. R. Co. v. Wells, 265 U. S. 101, 44 S. Ct. 469, 68 L. Ed. 928. It concedes that our holdings are adverse to its contention. State v. District Court, 156 Minn. 380, 194 N. W. 780; Erving v. C. & N. W. R. Co., 171 Minn. 87, 214 N. W. 12; Kobbe v. C. & N. W. R. Co., 173 Minn. 79, 216 N. W. 543; Gegere v. C. & N. W. R. Co., 175 Minn. 96, 220 N. W. 429; Winders v. I. C. R. Co., 177 Minn. 1, 223 N. W. 291, 226 N. W. 213; Phillips v. C. & N. R. Co., 177 Minn. 233, 225 N. W. 106. In some of these cases reference is had to the extent of the defendant's railway system in Minnesota. Though created under foreign laws, it is localized in Minnesota as one of the important railway systems of the state. It operates in connection with another railway, which it substantially owns, and the two make one system. See State v. C. & N. W. R. Co., 133 Minn. 413, 158 N. W. 627. In the Erving Case, 171 Minn. 87, 214 N. W. 12, the defendant was said to be "physically here." We make no further discussion of our conclusion that the defendant's contention is not well taken; and indeed the defendant asks none, but raises the point on the record, notwithstanding our adverse decisions, as with propriety it may do, for the purpose of obtaining a controlling federal review.
2. G. S. 1923 (2 Mason, 1927) § 9214, provides that action shall be tried in the county in which one or more of the defendants resided when the action was begun; and that if the defendant be a foreign corporation the action may be begun and tried in any county which the plaintiff designates in the complaint. Section 9215 provides that, if the county designated in the complaint is not the proper county, the action may still be tried therein, unless there is a demand for a change of venue. These two sections are parts of the same general law and are to be read and construed together. In State v. District Court, 176 Minn. 78, 222 N. W. 524, and State v. Dist Court (Minn.) 225 N. W. 915, we held that section 9215 applied to a foreign corporation having a place of business in the state, but sued in a county where it had no place of business, and that such foreign corporation could join with other defendants in a motion to change the venue to a county which was the choice of the majority. The foreign corporation has the rights given domestic corporations, and no burden not imposed upon a domestic corporation, or an individual, is imposed upon a foreign corporation. The statute is not discriminatory and in violation of the Fourteenth Amendment. In the case just cited reference was had to Power Mfg. Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 71 L. Ed. 1165, which involved an Arkansas statute held to be unconstitutional, as discriminatory against foreign corporations; and the phrase in section 9215 of our statute, "defendants residing in different counties," was held to include both foreign and domestic corporations, so that there was no discrimination as under the Arkansas statute. And see Doll v. Chicago, etc., R. Co., 159 Minn. 323, 198 N. W. 1006; Baker v. Chicago, etc., 205 Iowa, 1259, 217 N. W. 621.
3. The district courts of the state are courts of general original jurisdiction. The nature of their organization is such that they are competent to try issues arising under the federal liability act. It is the understanding that, except where venue is specially confined to a county, as, for instance, by section 9207 in the trial of actions for the recovery of land, actions may be brought and jurisdiction acquired and venue changed as provided in sections 9214, 9215.
The plaintiff's intestate was a resident of Illinois. He was killed on August 24, 1925. Suit was brought on November 16, 1925, in Ramsey county. A verdict was directed for the defendant. On appeal the order denying the plaintiff's motion for a new trial was reversed on March 18, 1927. Witort v. C. & N. W. R. Co., 170 Minn. 482, 212 N. W. 944. The second trial was commenced on September 19, 1927. Then for the first time, and after the cause of action was barred by the statute of limitations, the contention was made that the action could not be tried in Ramsey county, because the defendant had no place of business in the county. There had been no effort to invoke the provisions of section 9215 and obtain a change of the place of trial, and the time for such a motion had long passed.
The liability act is not averse to the trial in state courts of actions arising under it. By 45 USCA § 56, it is provided that "no case arising under this chapter and brought in any state court of competent jurisdiction shall be removed to any court of the United States." The same section provides that an action may be brought in a District Court of the United States in which the defendant is doing business at the time. The defendant was doing business and had a line of its railway in Goodhue county; and Goodhue and Ramsey, in which latter county the action is brought, are in the same division and district of the federal court. In the Winders Case, 177 Minn. 1, 223 N. W. 291, 226 N. W. 213, in the order overruling the motion for a reargument, all is said that need now be said relative to Douglas v. N. Y., etc., R. Co., 49 S. Ct. 355, 73 L. Ed. ___.
And we are unable to conceive how it can be held that the defendant could submit itself to the jurisdiction of the Ramsey county court and more than two years after attack the jurisdiction because of its claim that suit was not brought in the right county. The Ramsey court was of a jurisdiction competent to try the issues, and there was no reason why the defendant might not submit itself to its jurisdiction, as it did, though claiming an interference with interstate commerce. Our two recent cases of State v. District Court, cited in paragraph 2, constitute in effect a necessary holding that the district court has jurisdiction, though the action is brought in the wrong county, if the defendant cares to submit to it. Its belated claim that the Ramsey county court should not have entertained jurisdiction cannot be sustained.
4. At the first trial a verdict was directed for the defendant upon the ground of the insufficiency of the evidence to sustain the claim of the plaintiff that the deceased was engaged in interstate commerce. Witort v C. & N. W. Ry. Co., 170 Minn. 482, 212 N. W. 944. On plaintiff's appeal there was a reversal. The facts were there detailed and reference may be had to them.
Witort was a car inspector and did light repair when cars stood on the classification tracks. On the morning of the day when he was killed, the yard foreman directed a defective car to be shunted in on track 4 in the defendant's Proviso yards at Chicago. It was shunted in three or four car lengths to the east of the lead on which the crew was working. There was a defect in the east coupler of the car; that is, on the end away from the lead. The yardmaster then asked Witort to fix it. Still easterly on track 4, as we understand it, there were some 15 cars intended for Iowa. Shortly afterwards the yardmaster directed the switching crew to shunt in on track 4 some 13 cars, which were a part of a drag of 18. This was done, and when they hit the...
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